Professors Marit Rehavi and Sonja Starr recently published this piece, entitled Racial Disparity in Federal Criminal Charging and Its Sentencing Consequences. After analyzing data, the professors concluded that federal prosecutors charge offenders differently by race, and those charging differences often lead to disparities in sentences. Not surprisingly, men of color are charged, and therefore, sentenced more harshly. Here is the abstract to the paper:
This paper assesses the extent to which the large disparities in sentencing outcomes between black and white defendants can be explained by disparities in prosecutors’ initial choice of charges, a critical stage overlooked by existing studies of sentencing disparities. To analyze charging, we pair newly constructed measures of charge severity with a newly linked dataset that traces federal cases from the arrest through sentencing.
We find that black arrestees, especially black males, face significantly more severe charges conditional on arrest offense and other observed characteristics. The disparities in the use of charges that carry mandatory minimum sentences are particularly striking. These disparities appear to be major drivers of sentencing disparity. Black males face significantly longer sentences than white males do, on average and at almost every decile of the sentence-length distribution, even after conditioning on arrest offense, criminal history, district, and age. However, the addition of controls for initial charges renders most of these disparities insignificant. Indeed, the otherwise-unexplained racial disparities at the mean and at most of the deciles can be almost entirely explained by disparities in a single prosecutorial decision: whether to file a charge carrying a mandatory minimum sentence.
This was my experience in the federal system. I tended to see more firearm charges tacked onto drugs cases involving African American men. The firearm charges add a mandatory minimum sentence that would run consecutively to whatever sentence was imposed on the drug count. In other words, African American men would usually serve an additional 5 to 10 years more than white offenders.
It’s hard to see much fairness in that.